must consider whether the proposed investment was such as a prudent trustee would make of trust funds. After referring to In re Hunt's Settled Estates, [1905] 2 Ch. 418. 423, 424, 425 and authorities cited in the judgment, which was affirmed, [1906] 2 Ch. 11, his Lordship said that, although the infant remainderman was entitled to a considerable fortune under the two settlements, the Court must nevertheless consider whether the proposed investment was one that an ordinary prudent trustee ought to make. Apart from the life tenant's intention to reside there, no one in his senses would dream of investing 3,500l. in a leaseand liable to pay income tax on the hypothetical profit rent. hold house at 1901. ground rent, assessed for rates at 4177., The fact that the life tenant was buying the house for a residence did not make this otherwise bad investment a good The investment was not such as an ordinary trustee with an ordinary discretion of investing trust funds would be well advised in making, and, applying that test, the Court was unable to sanction the investment. The trustees had also taken the point raised, but left undecided, in In re Lord Stafford's Settlement, [1904] 2 Ch. 72, 77, 85, that, the sale moneys having been invested under s. 21, subs. 1, there were no uninvested capital moneys to which s. 22 could apply, and that they were not bound to realise investments for the sake of providing such capital moneys. This was a somewhat startling contention, but having regard to his view on the first point his Lordship did not propose to go into the matter. one. In 1915 the life tenant of real estate settled in 1908 sold the property, and the net proceeds, about 11,000l., were by his direction invested by the Settled Land Act trustees in securities now worth 9,000l. In 1918 the life tenant as such contracted to buy a leasehold house in Mayfair for 3,500l. as a residence, and desired the trustees to provide the purchase money out of capital. The title was registered. The term had 83 years to run. The ground rent was 1901. The tick rent was assessed at 5001. gross and at 4171. net rateable value. The contract was conditional on the approval of the trustees or the Court. The life tenant's valuers advised that the ground rent was not high for the neighbourhood, and that the purchase for 3,500l. (about 11 years' purchase of the profit rental) would be a perfectly safe and proper investment of the trust funds. The trustees' valuer, on the other hand, laid great stress on the high ground rent; if it became desirable to sell or let, difficulty and delay would probably be incurred before a purchaser at 3,500l., or a tenant at an adequate rent, could be secured, and he did not consider the house a desirable investment for trust funds. In these circumstances the trustees declined to approve the purchase or to apply capital moneys therefor without the sanction of the Court, and on November 27, 1918, the life tenant issued tis summons for that sanction. Independently of their interests under the realty settlement in question, the life Astbury J. tenant and infant remainderman were entitled to a consider- Ashworth James for the life tenant. ASTBURY J. said that the life tenant's contention that, Solicitors for life tenant: Williams & James. Solicitors LAYCOCK V. SPECIAL COMMISSIONERS FOR INCOME TAX. estate Executors and administrators Insolvent On October 16, 1915, W. S. Laycock was assessed for super-tax for the year ending April 5, 1916, in the sum of 1,191., and on February 16, 1916, he paid 500l. on account. On March 2, 1916, he died intestate and insolvent, and on August 16, 1917, the plaintiff took out administration. On September 24, 1917, the assessment was reduced to 1,0777., being the proportion payable to March 1, 1916, under the Finance Act, 1912 (2 & 3 Geo. 5, c. 8), s. 6. This left 5771. still payable. The secured creditors having realised their securities, and the estate, which was being administered out of Court, being insolvent, the question arose whether the Will-Construction-" Business "-Trade liabilities of testator-Not payable by legatees of the business-DebtsSpecific bequests. Crown debt of 5771. ought to be paid in full in preference to Peterson J. Whinney for the plaintiff. By his will a testator bequeathed to his wife all his personal property and furniture, monies, &c., out of which his funeral expenses were to be paid. There was no direction as to the payment of debts. He then bequeathed to his second son P a one-third share in the Queen Street cycle business," to his younger son C a one-third share, and to his wife a one-third share, the three shares to "rank equally in the goodwill, fixtures, machinery, stock, book debts, &c., connected with the business." The whole of the residue of his estate was in effect left to his wife for life, and on her death was to be sold or equitably divided between all his surviving children. The plaintiffs were the executors and trustees of the will. The testator left a widow (one of the trustees) and seven children. At the death of the testator the trade liabilities of the business carried on by him were 4601., and the value of the business assets was 3921. The residue of the estate not specifically bequeathed and available for payments of debts was between 201. and 301. One of the questions raised by the executors and trustees upon an originating summons was whether the debts due from the testator at the date of his death in respect of his business of Sheldon for the Special Commissioners contended that though s. 33, sub-s. (1) was inapplicable, as the assessment was up to April 5, 1916, after the death, there was still a common law priority for the Crown debt. This common law priority had not been abolished by the Bankruptcy Act, 1914, which was merely "An act to consolidate the law relating to bankruptcy." Sect. 33, sub-s. (5) was merely a reproduction of s. 1, sub-s. (6) of the Preferential Payments in Bankruptcy Act, 1888 (51 & 52 Vict. c. 62). That sub-section, read with s. 10 of the Judicature Act, 1875, which applied the bank-cycle manufacturer and repairer ought to be paid out of the ruptcy rules to Court administrations of insolvent estates, had been confined to Court administrations: In re Heywood, [1897] 2 Ch. 593. And the same construction should be adopted although s. 3 of the Act of 1888, confining its operation to receiving orders and administration orders made after the commencement of that Act, was not repeated in the present Act, that provision being no longer necessary. Philip Stokes for the creditor contended that the language of the Bankruptcy Act, 1914, s. 33, was perfectly clear, and that there was nothing to confine it to Court administrations. ASTBURY J. said that prima facie a consolidation Act must be construed as intended only to consolidate the law as previously existing and not to create a large and substantial change in the common law in respect of a matter to which the title of the Act did not really apply. It was contended that the language of s. 33, sub-s. (5) of the Bankruptcy Act, 1914, was perfectly general, but since the decision in In re Heywood the exactly similar sub-section of the Act of 1888 had been confined to Court administrations, and in those circumstances s. 33, sub-s. (5) must be similarly limited. The Crown debt of 5771. must therefore be paid in full in prefer ence to the other debts. Solicitors for plaintiff Johnson, Weatherall & Sturt. Solicitor for Special Commissioners: Solicitor for Inland Revenue. Solicitors for creditor: Woodcock Ryland & Parker. G. R. A. business and assets connected with such business specifically Lyttelton-Chubb for the executors and trustees. W. G. Hart for the last defendant, representing children ultimately entitled, submitted that the trade debts must be borne by the business, and referred to Delany v. Delany, (1885) 15 L. R. Ir. (Ch.) 55, 67, where the Vice-Chancellor defined "business" as the process of buying and selling. or manufacturing, or the like," and to Farquhar v. Hadden, (1871) L. R. 7 Ch. 1. PETERSON J. said that the question was whether the gifts Solicitors for plaintiffs and two defendants: Rutland and K. B. D. KING'S BENCH DIVISION. Dec. 19. * DIRECTOR OF PUBLIC PROSECUTIONS, APP. v. FORD, RESP. Emergency legislation-Restriction of building-Validity of regulation-Regulation 8 E.-Defence of the Realm Consolidation Act, 1914 (5 Geo. 5, c. 8), s. 1, sub-ss. (1) (3) Munitions of War Act, 1915 (5 & 6 Geo. 5, c. 54), s. 10. Case stated by justices of Hampshire. The respondent was summoned on August 15, 1917, for having between February 15, 1917, and July 31, 1917, carried on certain building and construction work without licence from the Minister of Munitions contrary to Regulation 8 E. of the Defence of the Realm Regulations, which provides that: "It shall be lawful for the Minister of Munitions by order to regulate or restrict the carrying on of building and construction work, . . . and by such order to prohibit, subject to such exceptions as may be contained in the order, the carrying on of such work without a licence from the Minister." On July 14, 1916, the Minister of Munitions in pursuance of that regulation made an Order prohibiting the commencing or carrying on of any building work without a licence, provided that "where the total cost of the whole completed work in contemplation does not exceed the sum of 500l." a licence should not be required. The respondent, who was the owner of a dwelling-house called Doiley Manor, obtained on August 21, 1916, a licence from the Minister to carry on building work on the said house at an approximate cost of 5001. Between the date of that licence and February 15, 1917, the respondent caused building work to be carried on at the said house at a cost of about 1,000l., and between February 15 and August 15, 1917, he caused further work to be carried on at the house at a cost of 3641. The information was limited to the work carried on during the six months preceding the date of the information, that is to say, since February 15, 1917, as any prosecution for the work done in excess of 500l. at an earlier date was barred by . 11 of Jervis' Act. Upjohn K.C., Sir E. Marshall Hall K.C., and van den Berg for the respondent repeated the contentions urged below on both points. It was not disputed that the Order was justified by the Regulation 8 E, but it was contended that the regulation was not authorised by the statute. ... THE COURT (Darling, Avory, and Salter JJ.) allowed the appeal. 1. They held (affirming the justices on that point) that Regulation 8 E was not ultra vires. Darling and Salter JJ. were of opinion that it was authorised by s. 1, sub-s. (1) (e) of the Defence of the Realm Act, 1914, which gives his Majesty in Council power to issue regulations "to prevent the successful prosecution of the war being endangered"; while Avory J. held that it was authorised by s. 1, sub-s. (3) of the said Act as amended by s. 10 of the Munitions of War Act, 1915, which provides that the Minister of Munitions may (d) "regulate or restrict the carrying on of any work in any factory workshop or other premises." He was of opinion that the word " premises " was not to be read as ejusdem generis with the preceding words, and included a private dwelling-house in course of erection. He also thought the regulation was authorised by the last paragraph of (d), which empowers the Minister to regulate and control the supply of . . . material that may be required for any articles for use in war." 2. They held (reversing the justices) that the respondent did not come within the proviso to the Minister's Order, for the words "in contemplation" must refer to the total cost which was contemplated at the commencement of the whole work, and not merely to that which was contemplated at the commencement of that portion of the work which was within the six months preceding the information. Appeal allowed. Solicitor for appellant: Solicitor to the Treasury. Solicitor for respondent: Langton & Passmore. J. F. C. PROBATE, DIVORCE AND ADMIRALTY Divorce. DIVISION. TIMMINS v. TIMMINS. For the respondent it was contended (a) that Regulation 8 E and the Order made under it were ultra vires on the ground that Regulation 8 E was not stified by the provisions of the Defence of the Realm Act under which it purported to have been made; and b) that the cost of all work carried on by the respondent before February 15, 1917, must be ignored. The justices Lord Coleridge and Hill JJ. overruled contention (a), and as to (b) they held that they were confined to the consideration of the work done within the six months, that the "contemplation" referred to the proviso to the Minister's Order was a fresh contemplation at the commencement of the six months on February 15, and at as the work done since that date did not exceed 500l., Lo offence had been committed against the Order or Regulation 8 E. They accordingly dismissed the information. The Director of Public Prosecutions appealed. Jan. 13, 14. Husband and wife-Summary jurisdiction-Desertion by husband-Order that wife should not be bound to cohabit and for payment of maintenance-Fresh evidence-Power to discharge order-Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), ss. 5, 7. On August 13, 1916, the justices of B. made an order, on a married woman's application on the ground of her Sir Gordon Hewart S.-G., Branson, and Roome for the husband's desertion, that she should no longer be bound to appellant. cohabit, that she should have the custody of one of the two children of the marriage, a girl, until 16, and that the husband should pay her 6s. a week for maintenance of herself and the child. The husband retained the custody of the other child, a boy. On October 17, 1917, the wife sent the daughter back to her husband. The husband received and thenceforward maintained the daughter. He wrote a letter asking his wife to come back, and ceased to pay the 6s. a week. On May 27, 1918, the same justices discharged their former order on the husband's application, holding that the evidence of the above facts was fresh evidence within the meaning of s. 7 of the Summary Jurisdiction (Married Women) Act, 1895. The wife appealed. Joy for the appellant. Cotes-Preedy (Maddocks with him) for the respondent. LORD COLERIDGE J. said that there was clearly fresh evidence enabling the justices to discharge that part of the order which dealt with maintenance, and he thought that the order must be dealt with as a whole, and the justices had power to discharge it. HILL J. said that he thought the fresh evidence mentioned in s. 7 of the Act must be fresh evidence on every point on which the order was discharged or varied; there was no fresh evidence on the question of desertion or releasing the wife from cohabitation, and the justices had no jurisdiction to discharge it without the consent of the wife. In his opinion the appeal should be allowed. Solicitors for appellant: Sharpe, Pritchard & Co., for Wayne & Co., Birmingham. Solicitors for respondent: Murr, Rusby & Archer, for THE COURT (Lord Coleridge and Hill JJ.) (Hill J. dissent-Sharpe & Darby, West Bromwich. ing) dismissed the appeal. J. R. B. NOTICE TO SOLICITORS. HOUSE OF LORDS. With the view of insuring the greatest possible RECORD OF BUSINESS. accuracy and rapidity in the various publications Fried. Krupp Aktiengesellschaft v. Orconera Iron Ore Co. and connected with the LAW REPORTS the Council will Another. In part heard and adjourned. be obliged if the Solicitors to whom application is Société Anonyme des Fers et Métaux v. Greenway Brothers, made by any reporter acting for the Council will as soon Ltd. Considered. Order of the Court of Appeal affirmed and appeal dismissed. as possible after application furnish the Fried. Krupp Aktiengesellschaft v. Orconera Iron Ore Co. and necessary papers, together with any information in their power as to the names of the various Solicitors engaged in the case. At the same time, the Council thankfully acknowledge the assistance they have already received from so many members of the Profession in furnishing the papers required to prepare accurate reports. Another. Further heard for appellants. Counsel appearing for respondents but not called on. Order of the Court of Appeal affirmed and appeal dismissed. Fried. Krupp Aktiengesellschaft v. the Public Trustee and Others. Heard for appellants. Counsel appearing for respondents but not called on. Order of the Court of Appeal affirmed and appeal dismissed. JUDICIAL COMMITTEE OF THE PRIVY EMPLOYER AND WORKMAN. Compensation-Contracting out-Certified scheme-Right Compensation-Practice-Review of weekly payments- RECORD OF BUSINESS. THURSDAY, January 30. DIVISION 1. The Leonora (Prize Court, England). Further DIVISION 2. Raghunath Roy Marwari v. Raja Durga Prasad FRIDAY, January 31. DIVISION 1. The Leonora. Concluded. Cur. adv. vult. DIVISION 2. Raghunath Roy Marwari v. Raja Durga Prasad 48 Raghubar Dayal v. Bank of Upper India, Ltd. (Oudh). Heard. PAGE 47 48 47 48 Phillips and Others v. The Harbro' Rubber Co. Appeal from 46 In re British Red Ash Collieries, Ltd. Eastern Valleys Black |